DEPOSITION BASICS - HOW TO GIVE A GREAT DEPOSITION

INTRODUCTION

If you are a plaintiff in a personal injury suit, you are almost guaranteed that the defense attorney is going to take your deposition before the insurance company will even discuss settlement. If the prospect of answering questions under oath from a heartless defense attorney has turned you into a ball of nerves, I have some advice for you - get a grip. After thirty-plus years representing Plaintiffs, I can help you knock it out of the ball park at your deposition. If you follow the advice below, you will improve your chances of getting a great settlement and you will make your attorney very happy.

THE PURPOSE OF A DEPOSITION

Texas has liberal discovery rules, thus allowing the parties to a lawsuit to exchange every bit of evidence they intend to produce at trial. In that sense, it is akin to poker players showing each other their cards before the bets are placed. The purpose behind this is to facilitate settlement of cases without the necessity of a jury trial. The thinking is that if each party knows what evidence the other side has in its arsenal, each party will be better able to make an informed decision on settlement. Taking your opponent's deposition is one of the best ways to find out what the jury will be hearing from him if the case doesn't settle.

WHAT IS THE DEFENSE ATTORNEY TRYING TO DO

In taking your deposition, the defense attorney has three goals in mind. He wants to find out what you will tell the jury, judge for himself what kind of witness you will make, and tie you down to your testimony so you cannot change your facts at trial. This is why thorough preparation on your part is so important. In my office, the attorney himself, not staff, prepares the client, and plenty of time is allotted so that the client is thoroughly prepared and feels comfortable that he will be able to handle whatever comes his way.

ATTITUDE

If you only take one thing away after reading this paper, let it be this paragraph about attitude. Taking the right attitude into the deposition room counts far more than anything else. What is the right attitude? I tell clients they should be happy for the opportunity to meet the defense attorney and show him how good a witness you will be in front of a jury. Remember, up to now all the defense attorney has seen is stuff on paper. This is your opportunity to put a face on the case. Forget that you are missing work, had to fight traffic, had to spend time reviewing your file, and that you got lost on the way to your attorney's office. Walk into the room with an attitude that conveys friendliness, sincerity, openness, and eagerness. Finally, I advise clients to answer the defense attorney's questions the same way they would answer them if I were the one asking the questions.

You should be eager to meet the Defense attorney. Most of them are nice people and are just doing their job. Most of them would like to trim down their case load, so they may be just as inclined to avoid a trial as you are. Don't pre-judge him. Give him a chance to do his job and maybe he will find something in your testimony that will allow him to convince his adjuster to settle your case. If the defense attorney happens to be a jerk, let your attorney handle him while you stay calm and friendly. Luckily, jerk attorneys, at least in car wreck cases, are rare.

Sometimes, despite starting out with a great attitude, you will start to get impatient and irritable. This usually means either you are hungry or tired. Sometimes, it is just your body letting you know it is time to take your pain medicine. Whatever the cause, you will probably feel this coming on before your attorney can sense it. As soon as you feel yourself getting grumpy, ask for a break. Take the opportunity to clear your head, eat a snack, take a mild pain medication, or just mediate for a while in a quiet place. Sometimes, especially if it is a pretty day, just taking a short walk outside will bring that great attitude back. Then, go back into the deposition and show everyone what a great witness you are.

CALMING YOUR NERVES

As a courtesy to you, your deposition is always conducted in your attorney's office - a place you have been to before and a place you are familiar with and that feels friendly to you. Despite the friendly surroundings, you will still be nervous. It is alright to be nervous. Most people are, in such situations. Once you get past the initial questions you will settle down. I always tell clients to pretend the defense attorney is your neighbor, or a person you are meeting at a party who is just curious about what happened to you. I also explain that the attorney is giving you an opportunity to be heard. Your testimony at deposition is a great opportunity to convince the insurance company to make you a better settlement offer. The defense attorney will almost always be friendly and courteous to you because this is the best way to get information out of you. Return the favor and be friendly and courteous to him.

GENERAL DO'S AND DON'TS

ALWAYS TELL THE TRUTH: To put it another way, never, ever, lie. At no time is it permissible, legal, ethical, or smart to lie in your deposition. It is, after all, testimony under oath and lying under oath subjects you to punishment under our perjury statute. Secondly, there is no reason to lie about anything in a civil personal injury case. If it is a car wreck case, there is usually no question the defendant was at fault. You're in litigation only because the two sides can't agree on a settlement amount. Also, remember, the defense attorney usually already knows the answer to his question even before he asks it. Thirdly, it is usually quite obvious to everyone in the room when a witness is lying. Finally, if your attorney knows you are lying, he will probably have to cease his representation of you, leaving you without a lawyer with a trial date pending. Believe me, this is not a good position to be in.

DON'T WORRY ABOUT WHY THE ATTORNEY IS ASKING A PARTICULAR LINE OF QUESTIONS: Some of the questions you will be asked will sound ridiculous, irrelevant, or stupid. Don't worry about this. Sometimes, there are perfectly good reasons you are being asked these questions - reasons that are lost on a lay person who is unfamiliar with the rules of evidence, the elements of proof, or the questions a jury will have to answer. Your job is to answer each question truthfully, period. You are not there to analyze, criticize, or speculate why the attorney has asked you that particular question. If the attorney wants to spend fifteen minutes asking you about things that happened thirty years ago or anything else that might seem to you to be totally irrelevant to the suit, so be it. Remember, if he crosses the line, if he gets into a line of questioning that is improper or designed to harass you, it is your attorney's job to make him stop. Second-guessing the reasons why such questions are being asked will only distract you, or, even worse, cause you to blow your cool and say something that hurts your case.

DON'T TRY TO ANTICIPATE THE ATTORNEY'S QUESTIONS: Here, patience is the key. Listen to each question and answer just that question. Some attorneys are rookies who haven't yet mastered the art of asking good, concise, clear questions, and this will try the patience of everyone in the room, not just you. However, most defense attorneys have enough experience to conduct a good, professional deposition. Remember, this may be your first deposition, but the defense attorney has probably done hundreds, if not thousands.

DON'T TRY TO ANSWER IN A WAY THAT MAKES YOU SEEM LIKE AN ANGEL: This is the second most important advice you should take away from reading this paper. My number one rule when preparing clients for a deposition is: BE YOURSELF. If you are a fine, hard-working, decent person, the defense attorney will see this after spending an hour asking you questions. Testifying so as to burnish your own image will not only be obvious but can also come back to bite you. I once had a client who was asked the simple and expected question - had you had any alcohol to drink within twelve hours of the accident? She answered: "No, I don't drink." The problem was, her medical records, which of course the defense attorney had in her possession, documented that she had checked "social drinker" on the alcohol usage portion of the new patient form. None of this was important to the case, but her response made her look like a liar.

DON'T BE MELODRAMATIC: It is never a good idea to give the impression you are a complainer. You shouldn't describe your symptoms as terrible, awful, horrible, etc. The defense attorney will ask you about your pain and any disabilities you suffered as a result of your accident. Contorting your face and whining about how awful your pain was, or still is, is not an acceptable response. Pain questions should be answered objectively and clinically such as "I had pain in my neck and shoulder". Or, "I still have pain in my right knee". Note: there are no adjectives, such as "terrible", "awful", "unbearable" in front of the word pain. What do I mean when I say to answer "clinically"? I mean describe your pain just like your doctor did in your medical records. A typical record from your doctor will say something like this: "Patient presents today complaining of pain in his neck and back." Notice, it doesn't say "terrible pain" or "awful pain". Just pain. Sometimes, it will say "severe pain". This is ok from your doctor, but your testimony should just say "pain" unless the attorney asks you for a more detailed description.

If you are asked to rate your pain, be as objective as possible. If you were able to continue working during your medical treatment but you rate your pain a 10, this may be a little hard to believe. Actually, it is better to slightly understate it. Maybe it was just a 3 or a 4. It should go without saying that it is never ok to say: "on a scale of 1 to 10 my pain was a 100!!!" A simple 8 or 9 rating will do. Believe me, if you suffered a broken bone, the defense attorney and jury will know how much that must have hurt without you having to describe the pain. In such cases, the x-rays themselves are painful to look at! Showing those x-ray films to the jury is far more impactful than you describing how much pain you were in.

If you suffered only whiplash injuries, or even if you had to have knee surgery, don't act like this is the worst thing that could ever happen to anyone. After all, you still have all of your limbs, you have your eyesight, your hearing, and your speech. You are able to walk, sit, stand, drive, attend birthday parties, work, etc. Thinking about it in those terms lets the defense attorney know you have a positive attitude. He knows the jury will like this and he will report this to his adjuster.

I always counsel clients to take the position that they refuse to be victimized by their pain and disability. Sure you had pain, sure you had to go to medical providers, get stuck into an MRI tube, and take medicine that made you groggy and left you constipated. But you are still able to live a fairly normal life. Defense attorneys and juries will appreciate your attitude and reward you for it. The same goes even if you suffered a catastrophic injury. Just struggling to walk into the deposition room, or just being wheeled into the room, is descriptive enough.

DON'T LOOK FOR SYMPATHY: If your situation merits sympathy it will be evident within a few minutes of your deposition without you asking for it. As a matter of fact, the more you give the impression that you will not be victimized by your injuries the more sympathetic the defense attorney will be to your case. You may have had an injury that caused quite a bit of pain and disability for a few months after the accident. But if it is clear from your medical records and your testimony that you managed to find ways to work around your pain and limitations and that you were anxious to get back to work, you will make a sympathetic Plaintiff.

It is a truism in the personal injury field that the clients that have been injured the worst are the ones who complain about pain the least. People who have been seriously injured are just grateful to be alive. They will never ask for sympathy but juries will be naturally sympathetic toward them.

TO CRY OR NOT TO CRY: I tell my clients that it is ok to cry as long as it comes naturally and spontaneously in response to a question that appropriately evokes sadness or feelings of hopelessness. However, beware the two previous topics about being melodramatic and looking for sympathy. If your crying comes naturally, everyone in the room will know your feeling is genuine. If you are purposely over-reacting and being melodramatic, this too will be obvious to everyone in the room. Will it help or hurt your case? If your crying is genuine and if your emotions are rational, the defense attorney will know this will move the jury and will take this into account in his report to the insurance adjuster.

YOU HAVE TO BE WILLING TO PUT IN THE WORK:

No matter how good or how famous your attorney is, only you can be the star of your deposition. Your attorney can prepare you, do a dry run, and even give you in advance almost every question you will be asked. But once the deposition begins, it is all on you. This is your trial. This is your case. You are exhibit "A". How much money they offer you to settle your case depends on how well you testify. Will the jury like you? Will the jury believe you? Will the jury be sympathetic to you? These questions will be answered by your testimony.

How can you be sure you give it your best shot? You have to understand how important this day is to your case. If your attorney tells you to be in his office at 9 O'clock, be there at 8:30. (I always know we are in for a long day when my client is late to his own deposition.) Do your homework. Read your medical records, read the crash report, read the pleadings, review your answers to written discovery, and listen to your attorney during your preparation. None of this is a lot of fun but it makes for great results.

CONCLUSION

Your deposition is the most important part of your case, unless and until you have to go to trial and give testimony in front of a judge and jury. And if you do well at your deposition, you will not have to ever see a judge or jury. You don't have to be highly educated, you don't have to know anything about law, and you don't have to be a great speaker to give a great deposition. I have seen people with very low IQ's give fantastic, dramatic, compelling testimony. I have seen young children move juries to tears. The keys to given great testimony are all right here in this paper. You may have to read it more than once to absorb the information, but here it is in a nutshell: prepare in advance, listen to your attorney, always tell the truth, don't overstate your case, and be yourself. Good luck.

Robert Rodriguez

Law Offices of Robert Rodriguez